California's legal system includes instances of individuals being arrested for crimes they did not commit. This means they are factually innocent of any illegal conduct and have been falsely accused of a criminal offense, a situation that can have serious and lasting consequences.

There have been cases when someone was falsely accused because of overly aggressive police tactics in an attempt to reduce crime in a specific neighborhood. Other times, they were just in the wrong location at the wrong time. After they are arrested, a record of the arrest is created and becomes available to other law enforcement agencies can access their criminal record.

There have also been cases where innocent people were arrested but never formally charged with a crime because a prosecutor lacked sufficient evidence for a conviction and rejected the case, commonly known as a “DA Reject.”

There are cases where a prosecutor files formal charges but later decides to drop the case before trial. There are also cases where a prosecutor proceeds to a trial, but a jury acquits the defendant. In all these situations, an arrest creates a formal record that is publicly available and appears on a background check.

This means a defendant who is factually innocent of committing any crime still has an arrest record. Clearly, a record of arrest will often have negative consequences for anyone seeking employment.

So, how can an innocent person remove an arrest record for a crime they never committed? The answer lies in the 'factual innocence motion' outlined in California Penal Code 851.8 PC. If you can prove your innocence, you can file this motion. If successful, the arrest record will be sealed and ultimately destroyed.

It should be noted that PC 851.8 is different from an expungement. If the motion is granted, your criminal record will not indicate the arrest or prosecution for the underlying offense.

Our defense lawyers have provided an overview below to help readers better understand a factual innocence motion.

When Can I File a PC 851.8 Factual Innocence Motion?

The phrase “factual innocence” means you are innocent of a criminal act. A PC 851.8 factual innocence motion is used for someone who was wrongfully accused and must be filed within two years of the arrest.

There are several situations when you can make an argument for factual innocence, such as you were:

• Detained by police but not arrested
• Arrested but never charged with a crime
• Formally charged with a crime but later dismissed
• Charged with a crime, taken to trial, but not convicted

Under California Penal Code 851.8, your factual innocence motion could be granted, resulting in the criminal record being sealed and destroyed. The record of the arrest and criminal prosecution will be sealed and destroyed by the law enforcement agency that had jurisdiction over the case, the prosecutor's office that handled the case, and the United States Department of Justice.

Additionally, the arresting police department and Department of Justice will be ordered to seal all arrest reports, booking photographs, and other evidence against you for three years. Afterward, they are legally required to destroy the record of the arrest. This means any record of your arrest and prosecution won't appear on any agency's record in California.

The Petition for Factual Innocence Motion

In order to request a factual innocence motion under California Penal Code Section 851.8, you have first to petition the law enforcement agency who was arrested to destroy their record of the arrest. As stated, the request has to be made within two years from the date of arrest.

If the law enforcement agency doesn't respond within 60 days after receiving the petition, or if they deny the petition, you can make a petition to the court, which has jurisdiction over the case, to grant an order requiring them to seal and destroy the arrest record.

Under California Penal Code 849.5 and Penal Code 851.6 PC, if arrested and released without being charged with a crime, the arrest has to be deemed “detention only,” not an arrest. This means the criminal record would only show that you were detained.

The Factual Innocence Hearing

The criminal court will schedule a hearing to decide whether you are factually innocent. During the hearing, your attorney will present an argument of factual innocence by showing the court police reports, affidavits, or other relevant evidence. This process, designed to ensure fairness, should give you confidence in the legal system.

The common types of evidence used to prove factual innocence include phone records, photographs, DNA evidence, and witness testimony that establishes an alibi. It should be noted you have the initial burden of proof showing no reasonable cause existed to believe that you committed the crime that you were arrested for.

Suppose your criminal attorney proves there was no reasonable cause. In that case, the burden of proof falls on the shoulders of the prosecutor and arresting police officer, who will have to prove there was reasonable cause showing you committed the crime.

After all the evidence is presented to the court, the judge will either grant or deny your petition for factual innocence.

What If the PC 851.8 Factual Innocence Motion is Granted?

If the judge agrees there was no reasonable cause for the arrest or prosecution, your petition for factual innocence will be granted. Next, the judge will issue an order legally requiring (first 3 years) that the police, prosecutor, and DOJ seal record of arrest, evidence, booking information, and court records.

Potential employers won't be able to see any records showing you were arrested or prosecuted.  While these agencies will still have a copy of the arrest for three years, it will be sealed and can't be disclosed.

After three years, the records will be destroyed, and all agencies will no longer have any record of the arrest.

Cron, Israels & Stark for Help

A criminal record can significantly impact various aspects of your life, from employment opportunities and housing to bank loans and college enrollment. Even if you were wrongfully arrested, the mere existence of a record could lead to application denials.

Also, an arrest or prosecution for domestic violence will impact the ability to own or purchase firearms. In some professions, an arrest could lead to a loss of a professional license.

We understand the devastating consequences of being falsely accused. Our criminal defense attorneys are here to assist you in avoiding the harmful impact of a false arrest or prosecution. We can guide you through the process of filing a factual innocence motion under California Penal Code 851.8, providing you with the support and guidance you need.

Cron, Israels & Stark is a criminal defense law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401.